People v. Love , 18 Mich. App. 228 ( 1969 )

18 Mich. App. 228 (1969) 171 N.W.2d 33

PEOPLE
v.
LOVE

Docket No. 5,628.

Michigan Court of Appeals.

Decided June 26, 1969. Rehearing denied September 2, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Appellate Lawyer, and Stephen F. Osinski, Assistant Prosecuting Attorney, for the people.

William A. Gentz, for defendant.

Before: LESINSKI, C.J., and QUINN and DANHOF, JJ.

QUINN, J.

Defendant was convicted by jury verdict of breaking and entering in violation of MCLA § 750.110 (Stat Ann 1969 Cum Supp § 28.305), and he was sentenced to prison. His motion for new trial was denied and he appeals.

Defendant's first assignment of error relates to an in-court identification of defendant by an eyewitness, which defendant contends was tainted by an illegally held lineup. When the prosecuting attorney asked the witness for the identification, defendant objected and moved for a separate record because of a claimed unconstitutional lineup which tainted the identification. A separate record was made but the trial judge refused defendant's request to continue the separate record to the point of determining the fact of the alleged taint. The identification was permitted, and defendant says this was error without a prior determination that the in court identification was not tainted by the alleged unconstitutional lineup, citing United States v. Wade (1967), 388 U.S. 218 (87 S. Ct. 1926, 18 L. Ed. 2d 1149).

Dale Kuecken lived across from the laundromat that was burglarized. August 15, 1967, about 4:45 A.M., he returned home from work and observed activity near the building that aroused his curiosity. Kuecken saw a person going around behind the building and he heard a voice say "We can't get in". He saw someone trying to pry open the front door, and Kuecken called the police. Kuecken then heard glass breaking and an alarm ringing and he saw two persons running toward his side of the street. Kuecken took his shotgun and went outside to stop them. He called "stop" and one (defendant) stopped within eight to ten feet of Kuecken. The former threw something (later determined to be a tire iron) at Kuecken which struck Kuecken in the shoulder. The defendant and the other person drove off in an automobile.

The police arrived and Kuecken directed their attention to a car that was driving away from the scene. The police pursued this car, overtook it and apprehended defendant, Hutton and another. In this interval, a second police car arrived and Kuecken related to the officer what had occurred. Kuecken went with this car on a tour of the neighborhood looking for the persons Kuecken had seen and then to the police station. There Kuecken observed three people through a one-way glass panel and identified defendant as the person who threw the tire iron. The other two people were Hutton and the other person with Love and Hutton when they were apprehended. This is the alleged lineup defendant complains about.

The record discloses that the trial court found that Kuecken was able to identify defendant independently of the alleged illegal lineup, and this finding is supported by the record. (See Wade, supra.) We find no error on this point. People v. Floyd (1968), 15 Mich. App. 284; Commonwealth v. Bumpus (1968), 354 Mass 494 (238 NE2d 343).

Defendant's allegation of error with respect to the instructions of the trial court was not preserved for consideration by this Court, GCR 1963, 516.2. Defendant examined the instructions before they were given and he was afforded an opportunity to object to them. He did not object, but he did express satisfaction with them.

Defendant claims reversible error because the trial court did not require the prosecuting attorney to indorse two res gestae witnesses on the information. These witnesses were known to defendant prior to trial and he did not move for their endorsement or production at trial. This error was not saved for review. People v. Rimson (1966), 3 Mich. App. 713; People v. Amos (1968), 10 Mich. App. 533.

The grant of a motion for new trial is discretionary with the trial court. People v. Poole (1967), 7 Mich. App. 237. Neither the record nor defendant's arguments persuade us that the trial judge abused his discretion in denying the motion for new trial in this instance.

Finally, defendant asserts reversible error because the prosecuting attorney offered two res gestae witnesses to him for cross-examination without having them sworn as witnesses. Defendant made no objection to this procedure at trial nor was it alleged as a basis for new trial. It is raised for the first time on appeal. Defendant's characterization of these witnesses as res gestae does not make them such, and on this record, we do not find them to be res gestae witnesses. Defendant has failed to demonstrate that any miscarriage of justice resulted from this procedure. No reversible error has been shown. People v. Keiswetter (1967), 7 Mich. App. 334.

Affirmed.

All concurred.